Kalyango v. Ohio University

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

YUSUF KALYANGO, Ph.D., :

:

Plaintiff, : Case No. 2:22-cv-2028

:

v. : Chief Judge Algenon L. Marbley

:

OHIO UNIVERSITY, et al., : Magistrate Judge Elizabeth P. Deavers

:

Defendants. :

OPINION & ORDER

This matter is before this Court on Defendants’ Motion for Judgment on the Pleadings.

(ECF No. 13). For the reasons stated, the Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

a. Ohio University Investigations and Termination

On April 24, 2022, Plaintiff, Dr. Yusuf Kalyango, Ph.D., brought this action against

Defendants: (1) Ohio University (“OU”); (2) the OU Board of Trustees; (3) M. Duane Nellis,

President of OU; (4) Chaden Djalali, Executive Vice President and Provost of OU; (5) Brian Scott

Titsworth, Dean of OU’s Scripps College of Communication; (6) Robert K. Stewart, Director of

OU’s E.W. Scripps School of Journalism; (7) George Antonio Anaya, Civil Rights Investigator in

OU’s Office for Equity and Civil Rights Compliance; (8) Sarah L. Trower, Executive Director of

OU Office of Civil Rights Compliance and Title IX Coordinator; and (9) Michal S. Sweeney,

tenured professor of journalism history at OU. (ECF No. 1, ¶¶ 1–9). Plaintiff alleges violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1, et seq., (hereinafter referred to as

“Title VII”), the Civil Rights Act of 1991, 42 U.S.C. § 1981, as amended; and the Ohio Civil

Rights Act, Ohio Revised Code Chapter 4112.01, et. seq. (ECF No. 1 at 2).

Plaintiff was a tenured professor of journalism, media, and broadcast news, supervised

Ph.D. candidates, and oversaw study abroad programs at OU’s College of Journalism. (ECF No.

1, ¶¶ 17–26). In February 2017, a female graduate student who worked for Plaintiff on a study

abroad program, made a Title IX sexual and workplace harassment complaint against him. (Id., ¶¶

27–34). In July 2017, George Anaya, the Civil Rights Investigator in OU’s Office for Equity and

Civil Rights Compliance (“ECRC”), began an investigation into the accusations. (Id., ¶¶ 37–38).

Plaintiff not only denied the graduate student’s accusations but argues that OU’s Human Resources

office helped the student fabricate the complaint and that Mr. Anaya conducted a flawed, results-

oriented investigation that lacked proper protocol. (Id., ¶ 40). Plaintiff alleges that his accuser

produced no evidence of her allegations, and that Mr. Anaya disregarded several key witnesses

Plaintiffs presented to him to corroborate Plaintiff’s side of the story. (Id., ¶¶ 41–42). Additionally,

in February 2018, Plaintiff’s accuser filed a retaliation complaint against Plaintiff on behalf of

another individual who was not admitted into the School of Communication’s doctoral program

because that individual had been a witness to the graduate student’s initial complaint against

Plaintiff. (Id., ¶ 71). Plaintiff also denied these claims.

On August 24, 2018, Mr. Anaya produced a report detailing the harassment claim and his

findings, which Defendant maintains was the result of discriminatory animus because Plaintiff is

a black male of Ugandan descent. (Id., ¶¶ 1, 44–45). As a result of Mr. Anaya’s report, Plaintiff

alleges the Dean of the Scripps College of Communications, Brian Titsworth, and the School

Director, Robert Stewart, suspended Plaintiff from teaching, reassigned him to administration of

external grant applications and other activities, and banned him from representing the university

at academic conferences. (Id., ¶ 52, 65–66). Plaintiff argues that their decision was premature and

was in retaliation for Plaintiff previously complaining to Director Stewart that Professor and Chair

of the graduate admissions committee, Michael S. Sweeney, favored non-minority, American

students for admission over minority international students. (Id., ¶¶ 60, 67–68).

In January 2019, the graduate student who brought the first sexual harassment complaint

against Plaintiff sued both Plaintiff and the University, alleging that Plaintiff had sexually harassed

her and that the University had been deliberately indifferent to the harassment. (ECF No. 13 at 2)

(hereinafter “Case One”). Between March and April 2019, Plaintiff filed cross and third-party

claims in the proceedings against OU, Mr. Anaya, Ms. Trower, Mr. Djalali, and other senior

university officials asserting violation of due process and discrimination under Title IX. (ECF No.

1, ¶ 72; see Tess Herman v. Ohio University & Yusuf Kalyango, No. 2:19-cv-00201 (S.D. Ohio

2019) (these claims were subsequently dismissed)). Ultimately, the Plaintiff and OU reached

resolution with the student, and the case was terminated on June 2, 2020. (ECF No. 13 at 2).

Plaintiff argues that in retaliation for filing civil litigation and for failing to admit the

student who was the subject of the second complaint, Professor Sweeney directed a smear

campaign against him, publicly disclosed the investigation to other journalism school staff, and

“relayed discriminatory animus” to Mr. Anaya during his investigation of the second complaint

made against Plaintiff. (Id., ¶ 73–75). Plaintiff alleges that during this time, Professor Sweeney

and Mr. Anaya revived a sexual assault complaint that had been made against Plaintiff,

investigated, and dismissed in 2012 by a third graduate student. (Id., ¶¶ 75–77). Plaintiff argues

that Mr. Anaya contacted the former student, had her reformulate her story to accuse Plaintiff of

wrongdoing anew, and used that information to conclude that Plaintiff had violated OU’s sexual

harassment policy. (Id., ¶¶ 78–79). On May 30, 2019, Mr. Anaya released another report

concluding that Plaintiff’s conduct was “severe enough to create an intimidating, hostile, and

offensive educational and work environment,” which Plaintiff alleges was in retaliation for

Plaintiff naming Mr. Anaya as a defendant in his civil litigation. (Id., ¶¶ 80–83).

In October 2019, Plaintiff alleges that Provost Djalali initiated the University Professional

Ethics Committee (“UPEC”) to review the third, but oldest, student complaint. (Id., ¶ 84). Plaintiff

argues that the UPEC was composed of only Caucasian faculty and refused to interview him or

consider his evidence, and instead issued a report in November 2019 “rubber-stamping” Mr.

Anaya’s conclusions and recommending Plaintiff for de-tenure. (Id., ¶¶ 84–90). Director Stewart

also wrote a letter on behalf of the journalism faculty recommending Plaintiff for de-tenure, which

Plaintiff argues was a false misrepresentation because many of the staff did not believe Plaintiff

should be de-tenured. (Id., ¶¶ 97–99). In response, Plaintiff filed a formal complaint against

Director Stewart with OU’s ECRC office for prejudice and conducting a procedurally flawed

review of the claims against Plaintiff. (Id., ¶ 102). Plaintiff maintains that Dean Titsworth then

refused to meet with Plaintiff to hear his side of the story, and instead stripped Plaintiff of any

monetary compensation and sent a letter to the university’s provost recommending loss of tenure.

(Id., ¶¶ 103–04). During this time, Plaintiff also filed three other complaints for discrimination on

the basis of race and national origin against Director Stewart, Dean Titsworth, and Provost Sayrs—

investigations which he states were undermined by senior university officials. (Id., ¶¶ 121).

On September 11, 2020, Plaintiff filed a new civil action against OU alleging that during

their investigations of the complaints, OU: (1) discriminated against him on account of his race,

national origin, and gender; and (2) violated his right to contract under 42 U.S.C. § 1981 and Ohio

state law. (ECF No. 13 at 2; see Kalyango v. University of Ohio, Case No. 2:20-cv-4729)

(hereinafter “Case Two”)). Defendants allege that Plaintiff’s claims were based on an Equal

Employment Opportunity Commission (“EEOC”) charge he had filed in on April 11, 2019 for race

and national origin discrimination and retaliation, but not sex discrimination. (Id.).

Plaintiff maintains that OU’s Faculty Handbook section on de-tenure, requires an evidence-

based hearing before the Faculty Senate Committee (“FSC”) during which OU and the professor

at issue can put forward exhibits, witness testimony, and arguments. (Id., ¶¶ 123). Plaintiff’s

faculty hearing occurred December 9–10, 2022, during which Plaintiff presented evidence from

fourteen witnesses, including former students, professors, and other OU staff. (Id., ¶ 124). The

FSC determined the charges were not proven and recommended that Plaintiff be reinstated

immediately. (Id., ¶ 125). On March 1, 2021, the OU Board of Trustees objected to the FSC’s

findings and asked for the FSC’s reconsideration. (ECF No. 23 at 9). Plaintiff alleges that on April

2, 2021, the FSC reaffirmed its decision, citing concerns about discrimination and retaliation

against Plaintiff during the investigations. (Id.). The Board of Trustees rejected the FSC’s renewed

findings, revoked Plaintiff’s tenure, terminated his employment on April 9, 2021, denied him

severance, and refused to refund lost wages due to a furlough. (ECF No. 1, ¶ 129–30). Plaintiff

argues that the Board reversed the FSC’s recommendation in reaction to public pressure and media

scrutiny. (Id., ¶¶ 126–30).

On April 29, 2021, the parties in Case Two executed a dismissal without prejudice. (Case

No. 2:20-cv-4729, ECF No. 17). On May 24, 2021, Plaintiff filed a complaint against OU in the

Ohio Court of Claims alleging the same state-law causes of actions alleged here. (ECF No. 13 at

3) (hereinafter “Case Three”)). The case has been stayed pending the outcome of this action.

b. EEOC Filings and Charges

In March 2019, Plaintiff sent a letter to the EEOC’s Cleveland Field Office filing a charge

of discrimination agains OU for employment discrimination based on “race, gender, national

origin, and retaliation.” (ECF No. 23-1 at 1). With the letter, he submitted an EEOC Charge of

Discrimination form, that was not dated or signed, but with the boxes marked for discrimination

based on race and national origin and retaliation. (Id. at 6 (marked as EEOC Case No. 532-2019-

01361)). On April 11, 2019, Plaintiff filed another EEOC Charge of Discrimination form in the

same case, for the same time period, and making the same allegations. (ECF No. 12-1 at 1). This

had a slightly different description of the discrimination but was dated and signed by Plaintiff.

(Id.). Plaintiff alleges that he requested a right to sue letter on April 29, 2020. (ECF No. 1, ¶¶ 14–

15). A right to sue letter was issued by the U.S. Department of Justice’s (“DOJ”) Civil Rights

Division on July 23, 2020. (ECF No. 12-2 at 1).

Plaintiff also alleges that he filed a second EEOC Complaint on April 14, 2021, following

his termination, alleging sex, race, and national origin discrimination. (ECF No. 23 at 2; 23-3). In

his EEOC letter, Plaintiff included the following allegations: (1) when he attempted to appeal the

de-tenure decision, in retaliation, President Nellis undermined the investigations of the complaints

Plaintiff had brought against Dean Titsworth and Director Stewart; (2) that the OU Board of

Trustees had undermined and disregarded the decision of the FSC to reinstate him; (3) that these

actions resulted in a hostile, discriminatory employment action taken against him on the basis of

race, national origin, and sex; and (4) the Defendants continue to violate his due process and equal

protection rights. (ECF No. 23 at 10). Plaintiff states in his Complaint that he received a right to

sue letter from the Ohio Civil Rights Commission on March 10, 2022 (ECF No. 1 at 2).

During all the investigations against him, Plaintiff alleges that OU officials failed to adhere

to the mandatory investigation deadlines created by the Faculty Handbook and to protect his

identity and the investigations from media scrutiny. (Id., ¶¶ 86, 111). Plaintiff argues that as the

only Black faculty member in his field, he was treated worse than other Caucasian professors who

“had been accused of much worse.” (Id., ¶¶ 56, 60, 105, 110). Further, Plaintiff maintains that OU

has a policy to “accept uncorroborated statements of females to the detriment of non-Caucasian,

non-native male, either students or professors,” regardless of their truth or falsity. (Id., ¶ 105).

Plaintiff maintains that this ordeal has caused him severe mental and emotional anguish,

damaged his professional reputation, and negatively impacted his family. (Id., ¶¶ 53–55). He seeks:

(1) an injunction enjoining the University from engaging in discriminatory employment practices,

requiring the University to provide equal opportunities for all employees, and reinstating him as a

tenured professor; and (2) $75,000 in compensatory damages and back pay.

II. STANDARD OF REVIEW

When a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)

is based on the argument that the complaint fails to state a claim upon which relief may be granted,

the Court employs the same legal standard as a Rule 12(b)(6) motion. Morgan v. Church’s Fried

Chicken, 829 F.2d 10, 11 (6th Cir. 1987). The Court will grant the Rule 12(c) motion “when no

material issue of fact exists and the party making the motion is entitled to judgment as a matter of

law.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (internal quotation

marks omitted). The Court must construe “all well-pleaded material allegations of the pleadings

of the opposing party . . . as true, and the motion may be granted only if the moving party is

nevertheless clearly entitled to judgment.” Id. at 581 (internal quotation marks omitted). The court

is not required, however, to accept as true mere legal conclusions unsupported by factual

allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In addition to allegations in the pleadings, the Court may take into account “matters of

public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint.” Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (internal quotation marks

omitted). Additionally, the Court “may consider exhibits attached to a motion for judgment on the

pleadings ‘so long as they are referred to in the Complaint and are central to the claims contained

therein.’” Roe v. Amazon.com, 170 F. Supp. 3d 1028, 1032 (S.D. Ohio 2016) (quoting Bassett v.

Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008)).

III. LAW & ANALYSIS

A. Counts I and III

In Count I, Plaintiff brings a claim for discrimination and denial of equal protection based

on race, national origin, and sex in violation of Title VII of the Civil Rights Act of 1964. In Count

III, Plaintiff brings a claim for unlawful retaliation in violation of Title VII.

Title VII prohibits an employer from “discriminat[ing] against any individual . . . because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A

Plaintiff must show that he has suffered an adverse employment action, defined as a “materially

adverse” change in the terms or conditions of employment because of the employer’s action.

Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir. 2000). Title VII also prohibits an

employer from retaliating against an employee because of that individual’s exercise of protected

conduct. 42 U.S.C. § 2000e-3(a).

1. Failure to Exhaust Administrative Remedies

a. Parties’ Arguments

Defendants argue that Plaintiff has failed to exhaust his administrative remedies with the

EEOC for Count I for discrimination and Count III for unlawful retaliation under Title VII. (ECF

No. 13 at 4). As such, Defendants maintain that this Court lacks subject matter jurisdiction,

pursuant to Rule 12(b)(1). (ECF No. 13 at 3–4). First, Defendant alleges that Plaintiff’s failure to

indicate he also sought charges for sex discrimination in the EEOC Charge Form is grounds for

dismissal. (Id. at 4). Second, Plaintiff’s EEOC charge challenges actions prior to March 23, 2019,

and did not indicate it was a continuing action. (Id. at 5). Because Plaintiff was dismissed from the

University on April 9, 2021, almost two years after filing his EEOC charge, a year after he received

his right to sue letter, and seven months after filing his Case Two, Defendants argue that Plaintiff’s

April 19, 2019 charges cannot serve as a basis for an employment action under Title VII because

no adverse employment action occurred prior to March 2019. (Id.).

Plaintiff responds that he did exhaust his administrative remedies. (ECF No. 23 at 5, 13).

Plaintiff provides documentation for the first EEOC charge and provides the second letter he wrote

to the EEOC on April 14, 2021, making new allegations against OU and some of its senior officials.

(ECF Nos. 22-1; 23-2; 23-3). Plaintiff argues that EEOC exhaustion requirements are satisfied “if

the claim can be reasonably expected to grow out of the factual allegations in the EEOC charge.”

(ECF No. 23 at 11). He asserts that filing an EEOC Charge of discrimination is not a jurisdictional

prerequisite to suit but can be waived or subject to estoppel or equitable tolling. (Id. at 13). Finally,

Plaintiff alleges that retaliation claims are often exceptions to the general administrative

exhaustion rules as they often arise after claims for discrimination have been made. (Id. at 14).

Defendants reply that Plaintiff’s reported 2021 EEOC charge is simply a letter to an EEOC

field office that was sent nine months after he received the right to sue letter for his first EEOC

complaint in 2020. (ECF No. 24 at 3). Therefore, Defendants argue that Plaintiff failed to file suit

within 90 days of receiving his 2020 right to sue letter and cannot claim that subsequent conduct

that he raised 300 days later can serve as the basis of for the 2020 right to sue letter. (Id.).

b. Exhaustion Requirements Under Title VII

Prior to filing a Title VII claim in federal court, an employee typically must exhaust

administrative remedies with the EEOC. Younis v. Pinnicle Airlines, 610 F.3d 359, 361 (6th Cir.

2010). An employment discrimination claim must be filed with the EEOC within 180 days of the

alleged unlawful practice. 42 U.S.C. § 2000e-5(e). If the employee first files with a state or local

anti-discrimination agency, this period is lengthened to 300 days. Id. When a charge of

discrimination is filed, the EEOC must investigate the complaint. 41 U.S.C. § 2000e-5(b). If the

EEOC determines that the complaint has a reasonable basis to bring the claim, it will issue a right-

to-sue-letter to the Plaintiff. Dickerson v. Associates Home Equity, 13 Fed. App’x 323, 323–24

(6th Cir. 2001). If the EEOC does not issue a right to sue letter within 180 days, the Plaintiff may

request one. Id. at 324.

An employee should file an administrative charge with the EEOC which is “‘sufficiently

precise to identify the parties, and to describe generally the action or practices complained of.’”

Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.Ct. 13, 17 (2017) (quoting 29 C.F.R. §

1601.12(b)). Generally, a Title VII plaintiff cannot bring claims in a lawsuit that were not included

in his EEOC charge. 42 U.S.C. § 2000e-5(f)(1); see also Alexander v. Gardner-Denver Co., 415

U.S. 36, 47 (1974). This rule gives the employer notice concerning the conduct at issue and affords

the EEOC and the employer notice and an opportunity to settle the dispute. Younis, 610 F.3d at

361. This requirement, however, is “not meant to be overly rigid, nor should it ‘result in the

restriction of subsequent complaints based on procedural technicalities or the failure of the charges

to contain the exact wording which might be required in a judicial pleading.’” Kilpatrick, 838 Fed.

App’x at 146 (quoting Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006)).

Because aggrieved employees, not attorneys, typically file these charges, their pro se EEOC

complaint should be liberally construed to encompass all claims “reasonably expected to grow out

of the charge of discrimination.” Randolph, 453 F.3d at 732. Therefore, where the “facts related

with respect to the charged claim would prompt the EEOC to investigate a different, uncharged

claim, the plaintiff is not precluded from bringing suit on that claim.” Davis v. Sodexho, 157 F.3d

460, 463 (6th Cir. 1998).

Administrative exhaustion, however, is not a jurisdictional requirement under Title VII,

but a “mandatory claim-processing rule, subject to waiver or forfeiture if not properly raised.”

Kilpatrick v. HCA Human Resources, LLC, 838 Fed. App’x 142, 145–46 (6th Cir. 2020) (citing

George v. Youngstown State Univ., 966 F.3d 446, 469 (6th Cir. 2020)). Defendants can forfeit the

defense if they fail to raise it in a timely manner or the parties can agree to waive the Plaintiff’s

requirement to obtain a right to sue letter. George, 966 F.3d at 469.

c. Discrimination and Retaliation Claims

On April 14, 2021, Plaintiff sent a letter notifying the EEOC Cleveland Field Office that

through the letter, he was filing a charge of employment retaliation and employment discrimination

on the basis of race, national origin, and sex against OU following his de-tenure and termination.

This was five days after he was terminated from OU, and easily meets the timeliness requirement.

Additionally, the EEOC has entered into a work-share agreement with the OCRC, allowing it to

receive and resolve charges of discrimination on behalf of the EEOC. 29 C.F.R. § 1626.10.

Therefore, when a plaintiff receives a right-to-sue letter from the OCRC, he will satisfy the

condition precedent to file an action in federal court. Kendel v. Local 17-A United Workers & Com.

Workers, No. 5:19-cv-1111, 2010 WL 3937359 at *2 (N.D. Ohio Oct. 6, 2010). Plaintiff received

a right-to-sue letter from the OCRC on March 10, 2022. (ECF No. 1 at 2). It appears that Plaintiff’s

April 2021 EEOC charge was received and assessed by the OCRC, which provided Plaintiff with

the right-to-sue letter necessary to file this action in April 2022.

In his April 14, 2021 EEOC charging letter, Plaintiff detailed that he was discriminated

and retaliated against on the basis of race, national origin, and sex, and that OU continued to violate

his rights to due process and equal protection under these laws when it de-tenured and terminated

him. (ECF No. 23-3 at 3–4). This Court need not assess whether Plaintiff’s claims grew out of his

2019 EEOC charge because Plaintiff filed a separate EEOC charge following his de-tenure and

termination (ECF No. 23-3) and received a right-to-sue letter from the OCRC for that claim. (ECF

No. 1 at 2). Additionally, those filings outlined the claims brought in this action and described that

harm as continuing. Therefore, Plaintiff satisfies Title VII’s exhaustion requirements for all claims.

1. Failure to State a Claim

a. Parties’ Arguments

Defendants also argue that because Defendant filed the EEOC Charge for the period of

September 23, 2018 to March 23, 2019 and before he was terminated from OU, he essentially

challenges the recommendation by his peers that he be dismissed and OU’s decision to place him

on paid leave. (ECF No. 13 at 5). The Defendants argue that these are not “materially adverse

employment action[s]” under Sixth Circuit precedent. (Id. at 6; 24 at 2). Additionally, Defendants

assert that even if Plaintiff’s Title VII claims were not barred, their dismissal is still appropriate.

(Id.). They state that Plaintiff’s pleadings are “severely lacking,” because Plaintiff only makes

conclusory statements that the investigations and termination decisions were flawed, but without

specific detail. (Id. at 6–7). Finally, Defendants allege that Plaintiffs’ retaliation claim has no basis

because OU was required to investigate the complaints made against him, which do not constitute

adverse employment actions. Therefore, Defendants argue that Counts I and III for discrimination

and retaliation should be dismissed with prejudice.

Plaintiff responds that his Complaint and the second EEOC filing set forth the violations

against Plaintiff “in exhaustive detail.” (ECF No. 23 at 5, 8–10, 15). Plaintiff argues that he was

mistreated and not given due process because the University was motivated by malice, racial

prejudice, and backlash from the “#MeToo” movement. (Id. at 15–16). Plaintiff implores this

Court to consider both EEOC charges, because together they gave the University sufficient notice

of the alleged wrongdoing. (Id. at 10). Defendants reply that Plaintiff’s failure to respond directly

to their allegations that Plaintiff did not properly plead discrimination and retaliation because he

lacks evidence of animus. (ECF No. 24 at 5).

b. Race and National Origin Discrimination

A plaintiff must first demonstrate that she suffered an adverse employment action to bring

a Title VII claim. An “adverse employment action” is an action by an employer that “constitutes a

significant change in employment status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant change in benefits.”

Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998); see also Kocsis v. Multi-Care Mgmt.,

Inc., 97 F.3d 876, 885–86 (6th Cir. 1996) (An adverse employment action typically constitutes “a

materially adverse change in the terms of employment,” such as “termination of employment, a

demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices that might be unique

to a particular situation.”); Dawson v. Airtouch Cellular, 42 F.Supp.2d 767, 771 (S.D. Ohio 1999)

(Marbley, J.) (granting summary judgment for the defendant where plaintiff had not alleged that

she lost any salary, seniority or benefits, nor received a less distinguished title or fewer

responsibilities as a result of alleged discriminatory remarks); Joiner v. Ohio Dep't of Transp., 949

F.Supp. 562, 567 (S.D. Ohio 1996) (no adverse employment action, despite loss of overtime and

supervisory responsibilities, because no change in pay or benefits and no other conditions existed

which would make working conditions intolerable).

There is no question that Plaintiff suffered an adverse employment action when he was

terminated from his tenured professorship in April 2021. While Plaintiff spends a large portion of

the Complaint rehashing the details of the investigations prior to the April 2019 EEOC complaint,

he also details the de-tenure and termination process. Therefore, his Complaint is not predicated

on solely the April 11, 2019 EEOC charge, as asserted by Defendants. While neither an “internal

investigation into suspected wrongdoing by an employee nor that employee’s placement on paid

administrative leave pending the outcome of such an investigation constitutes an adverse

employment, see Dendinger v. Ohio, 207 Fed. App’x 521, 527 (6th Cir. 2006), the events leading

up to his termination all constitute evidence Plaintiff uses to allege his current claims.

A plaintiff may satisfy the burden of establishing a prima facie case of discrimination by

presenting direct evidence of discriminatory actions. Direct evidence is “evidence which, if

believed, requires no inferences to conclude that unlawful retaliation was a motivating factor in

the employer’s action.” Imwalle v. Reliance Med. Products, Inc., 515 F.3d 531, 543–44 (6th Cir.

2008). Plaintiff fails to plead direct evidence of discrimination as a motivating factor in the adverse

employment decision. See e.g., Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 650 (6th

Cir. 2012) (concluding that a reasonable jury could find that race was a motivating factor in a

company’s decision to terminate an employee when prior to firing the plaintiff, her supervisor

stated “how [could he] keep the white girl.”); Taylor v. Bd. of Ed. of Memphis City Schs., 240 Fed.

App’x 717, 720 (6th Cir. 2007) (statement that another applicant was hired to “maintain racial

balance” plainly indicated unlawful discrimination may have been a motivating factor in the hiring

decision). Plaintiff pleads that his race, national origin, and sex were unlawful factors taken into

consideration by OU prior to his termination, but he provides no explicit evidence from either

defendants’ statements or writings that support a conclusion of direct discrimination.

A party can also prove discrimination through circumstantial evidence, but the plaintiff

bears the initial “not onerous” burden of establishing a prima facie case of discrimination by

preponderance of the evidence. White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir.

2008). To establish a prima facie claim of indirect, employment discrimination, a plaintiff must

demonstrate that: (1) he is a member of a protected class; (2) that he suffered an adverse

employment action; (3) that he was qualified for the position; and (4) that a similarly situated

employee outside the protected class or classes was treated more favorably. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). In a disciplinary context, to be “deemed ‘similarly

situated,’ the individuals with whom the plaintiff seeks to compare his/her treatment must have

dealt with the same supervisor, have been subject to the same standards and have engaged in the

same conduct without such differentiating or mitigating circumstances that would distinguish their

conduct or the employer’s treatment of them for it.” Mitchell v. Toledo Hospital, 964 F.2d 577,

583 (6th Cir. 1992).

A plaintiff need not demonstrate an exact correlation with the employee receiving more

favorable treatment, but that they are similarly situated in all relevant aspects. Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (finding that three, older, human

resources employees’ positions were similarly situated, even though they had different job

responsibilities, where their positions were all eliminated by a company reorganization and

younger employees, not the older employees, had been offered the opportunity to transfer jobs)

(emphasis added). To determine whether the plaintiff and the non-protected party committed the

same conduct, but plaintiff’s disciplinary action was motivated by discriminatory animus, courts

look to the “comparable seriousness” of their actions. Jackson v. VHS Detroit Receiving Hosp.,

Inc., 814 F.3d 769, 778 (6th Cir. 2016).

Once the Plaintiff makes this showing, the burden of production shifts to the defendant to

provide a legitimate, nondiscriminatory reason for its actions. Chen v. Dow Chem. Co., 580 F.3d

394, 400 (6th Cir. 2009). Once the defendant meets its burden, the burden shifts back to the

plaintiff to demonstrate pretext, that is, that the employer’s reasoning was “fabricated to conceal

an illegal motive.” Id. A plaintiff demonstrates pretext where defendant’s nondiscriminatory

reason for defendant’s action “(1) had no basis in fact, (2) did not actually motivate defendant’s

conduct, or (3) was insufficient to warrant the challenged conduct.” Zambetti v. Cuyahoga Cmty.

Coll., 314 F.3d 249, 258 (6th Cir. 2002).

An individual’s national origin is defined as “the country where a person was born, or,

more broadly, the country from which his or her ancestor’s came.” Espinoza v. Farah Mfg. Co.,

414 U.S. 86, 88 (1973). An individual’s race is defined as having “personal attributes in common.”

Kostic v. United Parcel Service, Inc., 532 F.Supp.3d 513, 523 (M.D. Tenn. 2021). There is often

overlap between the two types of discrimination, and here, Plaintiff appears to plead the issue of

race and national origin together. See Burrage v. FedEx Freight, Inc., No. 4:10-cv-2755, 2012 WL

1068794, at *8 (N.D. Ohio Mar. 29, 2012). That said, they are not so intertwined as to prevent

separate analysis.

The parties do not dispute that Plaintiff is a member of a protected class and qualified for

his position. As established supra, Plaintiff suffered an adverse employment action when he was

de-tenured and terminated. Therefore, this Court focuses on the fourth factor required to establish

a prima facie claim of indirect discrimination: that a similarly situated employee outside the

protected class or classes was treated more favorably. McDonnell Douglas Corp., 411 U.S. at 802.

Plaintiff alleges that there were at least three, American-born, Caucasian professors who were

“accused of, found liable for, and/or charged criminally for conduct far [more] egregious than that”

of which Plaintiff was accused, but were only sanctioned with training and/or limited suspension.

(ECF No. 1, ¶ 105). He further alleged that at least two minority OU professors “had been de-

tenured, terminated, or otherwise forced out of their employment” for conduct similar to or less

egregious than their American-born, Caucasian peers. (Id.). Plaintiff asserted that OU protected

the identity of one of the accused white, male professors, but did not provide the same protection

to Plaintiff. (Id., ¶ 110).

Although Plaintiff does not address whether he and these professors had the same

supervisor, the Sixth Circuit has held that the “shared supervisor” requirement is flexible. Seay v.

Tenn. Valley Auth., 339 F.3d 454, 479–80 (6th Cir. 2003) (finding that two individuals with

different supervisors were still similarly situated because all of the people involved in the

disciplinary decision-making process were aware of the discipline “meted out to past [policy]

violators.”). What is important here, is whether both Plaintiff and the other disciplined professors

dealt with the same ultimate-decisionmaker. McMillan v. Castro, 405 F.3d 405, 414 (6th Cir.

2005). The ultimate decisionmakers cannot be the same here because Plaintiff was recommended

for de-tenure and was terminated, but his American-born, Caucasian peers were sanctioned with

training, and therefore, did not have to be reviewed by the FSC or Board of Trustees. Plaintiff

alleges, however, that UPEC reviewed these other professors, like him—meeting prong one.

Plaintiff pleads that the Faculty Handbook and ethical code within was applicable to all

professors brought before the UPEC, yet UPEC, the FSC, and the Board of Trustees failed to

follow the hearing procedures set out in that handbook for these types of investigations. (ECF No.

1, ¶ 136). Plaintiff argues that OU was “taken by the “me too” hysteria” and in the process stripped

him of his constitutional rights. (ECF No. 23 at 15–16). Even taking these allegations as true,

Plaintiff’s claim still fails to meet the prima facie requirements. Plaintiff fails to plead any facts

about the nature of the conduct of the non-protected individuals. While Plaintiff states that OU had

a policy of accepting “uncorroborated statements of females” and that these professors were

“accused of much more egregious and grave conduct,” he does not state what kind of conduct they

committed or if these individuals were even accused of sexual harassment like Plaintiff. (Id., ¶

105). Even assuming arguendo that the non-protected professors were accused of sexual

harassment, Plaintiff’s conclusory statements that they were accused of more egregious conduct

than he provides this Court insufficient information. This Court is not required to accept as true

mere legal conclusions unsupported by factual allegations, see Ashcroft, 556 U.S. at 678, as legal

conclusions do not demonstrate to this Court how Plaintiff’s conduct and the conduct of the non-

protected class was of comparable seriousness, and therefore, should have been disciplined the

same. Because Plaintiff fails to meet the pleading requirements, even under the low burden

required at this stage. Defendants’ Motion for Judgment on the Pleadings is GRANTED will

respect to Plaintiff’s claims for racial and national origin discrimination, which are DISMISSED

WITHOUT PREJUDICE.

c. Sex Discrimination and Res Judicata

Defendants argue that Plaintiff’s reverse sex discrimination claim is also barred by res

judicata, because he brought an identical claim as a cross claim against the University in Case One,

which was dismissed for failure to state a claim. (ECF No. 13 at 7–8; see Case No. 2:19-cv-0201,

ECF No. 58 at 8). Therefore, the Defendants argue that this issue cannot be relitigated. (Id. at 8).

Plaintiff maintains that the female complainants were afforded more protections than he

during the investigations. (ECF No. 23 at 17–18). He argues that the claims made by the female

complainants were taken at face value without corroborating evidence, unlike his responses and

those of his other male counterparts. (Id. at 18). Further, he alleges that he has met the pleading

requirements for a sex discrimination claim with direct evidence that OU discriminates against

men. (Id.). Finally, Plaintiff argues that all of his Title VII claims are not precluded by previous

litigation because the Eleventh Amendment bar does not apply to his sex, gender, and racial

discrimination claims. (Id. at 19).

Defendants reply that Plaintiff undermines his own argument, because the face of his

Amended Complaint details the more than two years of procedures and protections Plaintiff

received from OU prior to his dismissal. (ECF No. 24 at 4). Further, Defendants maintain that he

fails to allege with any detail that his accusers received more process than he. (Id.). Because there

is no direct evidence of sex discrimination, Defendants argue that Plaintiff’s claim for reverse sex

discrimination should be dismissed with prejudice.

The Sixth Circuit has set out the principles governing res judicata, or claim preclusion:

The doctrine of res judicata, or claim preclusion, provides that a final judgment on

the merits of an action precludes the parties or their privies from relitigating issues

that were or could have been raised in a prior action. As stated by this court, res

judicata has four elements: (1) a final decision on the merits by a court of competent

jurisdiction; (2) a subsequent action between the same parties or their privies; (3)

an issue in the subsequent action which was litigated or which should have been

litigated in the prior action; and (4) an identity of the causes of action.

Rivers v. Baberton Bd. of Educ., 143 F.3d 1029, 1031 (6th Cir. 1998) (internal citations omitted).

It is well-established that a prior dismissal for failure to state a claim upon which relief may be

granted, operates as an adjudication on the merits. Cobbs v. Katona, 8 Fed. App’x 437, 439 (6th

Cir. 2001). The theory of continuing violation, however, bars res judicata from extinguishing

claims that did not exist when the previous suit was brought. Lawlor v. National Screen Service

Corp., 349 U.S. 322, 327–28 (1955). Elaborating on this precedent, the Sixth Circuit reasoned that

a plaintiff should not be barred from asserting “new claims based on continuous wrongful conduct,

even if that conduct is identical to the subject of a prior suit.” Pram Bguyen ex rel. United States

v. City of Cleveland, 534 Fed. App’x 445, 451 (6th Cir. 2013) (citing Res. 2d of Judgments Sec.

24(1)). Plaintiff’s sex discrimination claim was dismissed in Case One on November 22, 2019.

(Case No. 2:19-cv-0201; ECF No. 58). Plaintiff was not de-tenured and terminated until April

2021—the main adverse employment action for which Plaintiff brings suit. For this reason alone,

the doctrine of res judicata does not apply to Plaintiff’s sex discrimination claim.

Plaintiff’s reverse sex discrimination claim, however, fails for other reasons. To establish

a prima facie case of sex discrimination under Title VII, a plaintiff must show that: (1) he is a

member of a protected class; (2) he is qualified for the job; (3) he experienced an adverse

employment action; and (4) he was replaced by someone outside of the protected class. Arendale,

519 F.3d at 603. Because Plaintiff is male, the first and fourth prongs are modified. To satisfy the

first prong, Plaintiff must also prove background circumstances that make OU the “unusual

employer who discriminates against the majority.” Simpson v. Vanderbilt Univ., 359 Fed. App’x

562, 569 (6th Cir. 2009). To satisfy the fourth prong, Plaintiff must demonstrate that OU “treated

differently employees who were similarly situated but were not members of the protected class.”

Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003); Simpson v. Vanderbilt

Univ., 359 Fed. App’x 562, 569 (6th Cir. 2009) (male nurse failed to plead a prima facie case of

reverse sex discrimination where he provided insufficient evidence that a female nurse who was

not terminated engaged in acts of “comparable seriousness.”).

Plaintiff states that OU is the unusual employer who discriminates against men by believing

females over males but does not provide any specific examples. Assuming arguendo that Plaintiff’s

pleadings were sufficient to meet the first prong, Plaintiff still fails on the fourth prong. Plaintiff

alleges that OU had a policy to “accept uncorroborated statements of females” to the detriment of

“non-Caucasian, non-native male, either students or professors.” (ECF No. 1, ¶ 105). These

references are made, however, to the female students who brought harassment complaints against

Plaintiff and other OU employees, not other female, tenured professors. At most, Plaintiff makes

generic statements that where subjects of internal investigations were female or female professors

and more serious conduct was at issue, females were given preferential treatment. (Id.; 23 at 18).

The record is devoid of any detail regarding how these supposed female professors were treated

differently, other than a conclusory statement that they were treated differently. Wilson v. Ohio,

178 Fed. App’x 457, 466 (6th Cir. 2006) (male plaintiff failed to establish prima facie case of

reverse discrimination where he argued that his work was taken over by women, but provided no

evidence that male employees were statistically disfavored or treated differently than their female

counterparts). Therefore, Defendants’ Motion for Judgment on the Pleadings is GRANTED with

respect to Plaintiff’s sex discrimination claim under Title VII, and this claim is DISMISSED

WITHOUT PREJUDICE for failure to state a claim.

d. Retaliation

Plaintiff claims that he was retaliated against for launching investigations for

discrimination and retaliation against OU faculty and staff and his filing Case Two. A prima facie

case of retaliation requires Plaintiff to establish that: (1) he engaged in activity protected by Title

VII; (2) exercising his civil rights was known to Defendants; (3) Defendants took an adverse

employment action against Plaintiff; and (4) the protected activity and adverse employment action

were causally connected. Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008).

1. Protected activity

A plaintiff may satisfy the pleading requirement for protected activity by “alleging conduct

that falls within one of two clauses in the statute, which says it is an:

unlawful employment practice for an employer to discriminate against any of his

employees ... [1] because [the employee] has opposed any practice made an

unlawful employment practice by this subchapter, or [2] because he has made a

charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.

Hamade v. Valiant Gov’t Servs., LLC, 807 F. App’x 546, 549 (6th Cir. 2020) (quoting 42 U.S.C.

§ 2000e–3(a)). Accordingly, “[t]he first clause is known as the “opposition clause,” and the second

as the “participation clause.” Id. The “Supreme Court has held that the term “oppose” should be

interpreted based on its ordinary meaning: “[t]o resist or antagonize . . . ; to contend against; to

confront; resist; withstand.” Jackson v. Genesee Cty. Rd. Comm’n, 999 F.3d 333, 344 (6th Cir.

2021) (citing Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009)).

Additionally, “[e]xamples of opposition activity protected under Title VII include complaining to

anyone (management, unions, other employees, or newspapers) about allegedly unlawful

practices; [and] refusing to obey an order because the worker thinks it is unlawful under Title VII.”

Id. (citing Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 721 (6th Cir. 2008) (internal quotations

omitted)). The opposition clause protects not only the filing of formal discrimination charges with

the EEOC, but also complaints to management and less formal protests of discriminatory

employment practices. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014).

The plaintiff also must express her opposition in a reasonable manner. Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000). For example, “[a]n employee is not protected when

he violates legitimate rules and orders of his employer, disrupts the employment environment, or

interferes with the attainment of his employer’s goals.” Booker v. Brown & Williamson Tobacco

Co., Inc., 879 F.2d 1304, 1312 (6th Cir. 1989). Finally, the plaintiff himself must have a

“reasonable and good faith belief that the opposed practices were unlawful.” Jackson v. Genesee

Cnty. Rd. Comm’n, 999 F.3d 333, 345 (6th Cir. 2021) (quoting EEOC Compliance Manual, (CCH)

¶ 8006); see also Keys v. U.S. Welding, Fabricating & Mfg., Inc., No. CV91–0113, 1992 WL

218302, at *5 (N.D. Ohio Aug. 26, 1992) (noting that “[u]nder § 704(a) of Title VII, [the plaintiff]

needed only a ‘good faith belief’ that the company practice about which he was complaining

violated Title VII; it is irrelevant whether the allegations are ultimately determined to violate Title

VII”).

Plaintiff alleges multiple actions that meet the opposition clause definition of protected

activity under Title VII: (1) lobbying Director Stewart to intervene in Professor Sweeney’s alleged

discriminatory admissions practices; (2) filing an EEOC complaint in April 2019 alleging

retaliation and race, national origin, and sex discrimination; and (3) filing multiple internal

complaints against Stewart, Titsworth, and Sayrs for race and national origin discrimination after

they removed him from the classroom prior to the UPEC review. While Plaintiff expressed disdain

for the sanctions levied against him, there are no allegations that he violated orders from his

employer following the sanctions. Because Plaintiff denied the harassment allegations against him,

Plaintiff has sufficiently pleaded a reasonable belief that the investigations, sanctions, and ultimate

termination of his position were motivated by discriminatory animus in retaliation for him raising

employment discrimination concerns both internally to OU and externally with the EEOC.

2. Exercising civil rights and adverse employment action

Plaintiff meets the second and third prongs required to establish a prima facie case for

retaliation under Title VII. Plaintiff reasonably believed that the investigations against him, the

process by which he was recommended for de-tenure, and his subsequent termination were

conducted in an unlawful manner. Defendants were aware of Plaintiff’s opposition through his

first EEOC complaint and Plaintiff’s participation in two federal lawsuits.

3. Causal connection

Finally, the fourth part of the test requires “proof that the unlawful retaliation would not

have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of

Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360–62 (2013). A plaintiff must show that their

“protected activity was a but-for cause of the alleged adverse action by the employer.” Id. at 352.

A causal link may be shown through knowledge combined with closeness in time that creates an

inference of causation. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000). Although

temporal proximity, alone, will not support an inference of discriminatory retaliation, closeness in

time between the EEOC filing and the adverse employment action is relevant to evincing the

employer’s intent. Id. at 582–83; see also Cooper v. City of North Olmsted, 795 F.2d 1265, 1272–

73 (6th Cir. 1986) (“The mere fact that [the plaintiff] was discharged four months after filing a

discrimination claim is insufficient to support an inference of retaliation.”). Where time elapses

between when the employer learns of a protected activity and the subsequent adverse employment

action, the employee must “couple temporal proximity with other evidence of retaliatory conduct

to establish causality.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). An

intervening “legitimate reasons to discipline . . . dispels an inference of retaliation based on

temporal proximity.” Waske v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012)

(finding that the legitimate reasons was that plaintiff left the job site without permission after

making a complaint of sexual touching to a supervisor).

Even though the EEOC complaint that was related directly to Plaintiff’s termination was

filed after his termination in April 2021, Plaintiff alleges sufficient evidence to establish a causal

connection for purposes of retaliation. Plaintiff took action in response to what he alleges were

unlawful internal investigations against him as far back as March of 2019 when he filed cross

claims against OU in Case One. More than a year later, in September 2020, Plaintiff filed his own

action against OU alleging discrimination. During the same time period that Plaintiff filed federal

litigation and internal complaints against OU staff who were involved in the de-tenuring process,

the internal investigations into the harassment claims against him progressed and culminated in

termination. From the beginning of the investigations into Plaintiff, he alleges that the investigators

disregarded the evidence he presented to counter the harassment claims and flouted the

investigatory procedures laid out in the Faculty Handbook. Additionally, the decision to place him

on paid, administrative function does not constitute an intervening legitimate reason to dispel the

inference of retaliation, because Plaintiff took no wrongful action for which he was disciplined in

between the beginning of the investigations and his termination. Even though more than two years

passed from the beginning of the investigations to termination, Plaintiff alleges that the process of

de-tenure and termination was replete with wrongful conduct because he challenged OU’s conduct,

which robbed him of due process. Taking as true Plaintiff’s allegations, as required at this stage of

the litigation, he plausibly pleads a prima facie case of retaliation.

Therefore, Defendants’ Motion for Judgment on the Pleadings for Plaintiff’s retaliation

claim under Title VII is DENIED.

B. Count II

In Count II, Plaintiff brings a claim against Defendants for denial of equal contract rights

in violation of 42 U.S.C. § 1981 due to Plaintiff’s race and in retaliation for engaging in protected

activity. First, Defendants argue that Count II is barred by res judicata and the Eleventh

Amendment. (ECF No. 13 at 8). Defendants allege that Plaintiff brought an identical claim in Case

One, which was dismissed by this Court as being barred by the Eleventh Amendment. (Id.; see

Herman, Case No. 2:10-cv-0201, ECF No. 58 at 4 (Morrison, J.)). Second, Defendants argue that

even if Plaintiff’s claim was not precluded, a § 1981 claim cannot be brought against state actors.

(Id. at 9). Finally, Defendants allege that Plaintiff’s Complaint “sounds in breach of contract, not

intentional discrimination,” therefore, it does not meet the pleading requirements of § 1981 which

require well-pled facts of intentional race-based discrimination. (Id.).

Plaintiff responds that the facts have evolved since he initially asserted this claim because

he was actually terminated by OU in the interim. (ECF No. 23 at 19). Because his previous § 1981

claim pre-date his termination, Plaintiff argues that his current § 1981 claim should be considered

in the context of the facts that he was de-tenured and terminated from his position. (Id. at 20).

Section 1981 prohibits discrimination in “the making, performance, modification, and

termination of contracts.” 42 U.S.C. § 1981. The elements of a prima facie case are the same for

those in a Title VII action, but the plaintiff must demonstrate purposeful discrimination in a § 1981

suit by a preponderance of the evidence. General Building Contractor’s Assoc, Inc. v.

Pennsylvania, 458 U.S. 375, 390 (1982). A prima facie case raises an inference of discrimination

“only because we presume [the defendant’s] acts, if otherwise unexplained, are more likely than

not based on the consideration of impermissible factors.” Christian v. Wal-Mart Stores, Inc., 252

F.3d 862, 870 (6th Cir. 2001) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248, 254 (1981).

Plaintiff’s claim fails, however, even before this Court assesses the merits of the claim.

First, as discussed supra, res judicata is inapplicable where the continuing violation doctrine

applies. Second, § 1981’s implicit cause of action does not extend to suits brought against state

actors in their official capacities. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 709 (1989). Further,

in 2012, the Sixth Circuit held that 42 U.S.C. § 1983 is the exclusive mechanism to vindicate

violations of § 1981 by an individual state actor acting in his individual capacity. McCormick v.

Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012). It clarified, however, that Plaintiffs may bring

actions under § 1981 against private actors. Id. at FN 3. That is not the case here. Plaintiff’s claims

against individual OU employees allege misconduct as it relates to their status as employees of a

state university. Additionally, the Eleventh Amendment bars claims against OU under § 1981

because it is a public university in the state of Ohio. See Ohio Rev. Code § 3339. Since a public

university qualifies as an arm of the state, see Johnson v. Univ. of Cincinnati, 215 F.3d 561, 571

(6th Cir. 2012), OU “is immune from suit under the Eleventh Amendment because it is well-settled

that a plaintiff is precluded from directly suing a State in federal Court.” Id. Therefore, Defendant’s

Motion for Judgment on the Pleadings is GRANTED with regards to Plaintiff’s § 1981 claim,

which is DISMISSED WITH PREJUDICE.

C. Counts IV–XVI

Counts IV–XVI set forth claims under Ohio law for discrimination, retaliation, breach of

contract, breach of administrative policies, and public policy violations. These claims are currently

pending before the Ohio Court of Claims in the Case Three. (ECF No. 13 at 9). Defendants argue

that these claims should be dismissed because Ohio has not waived its Eleventh Amendment

immunity from suit in federal court in connections with claims under Ohio law. (Id.). Plaintiff does

not respond to this argument.

The Eleventh Amendment to the United States Constitution states:

The Judicial power of the United States shall not be construed to extend to any suit

in law or equity commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. It is well settled that the Eleventh Amendment applies not only to suits

brought against a State by a citizen of “another State,” but also to suits brought by citizens against

the State in which he or she resides. See generally Hans v. Louisiana, 134 U.S. 1 (1890). The

Eleventh Amendment, as interpreted by the Supreme Court, bars an action against a State in federal

court, unless Congress has abrogated its sovereign immunity or the State has expressly waived it.

Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253–54 (2011). The same

immunity applies to an instrumentality of the state, such as a state official sued in his or her official

capacity. Regents of the University of California v. Doe, 519 U.S. 425, 429 (1997); Ernst v. Rising,

427 F.3d 351, 358 (6th Cir. 2005). Suits for money damages against state officials in their official

capacity are considered to be suits against the state itself. Will v. Michigan Dept. of State Police,

491 U.S. 58, 71 (1989).

Plaintiff does not expressly state whether he seeks to hold these parties liable in their

official or individual capacities, but it is appropriate to presume that these officials are sued in their

official capacities given the nature of Title VII. Johnson v. University of Cincinnati, 215 F.3d 561,

571 (6th Cir. 2000) (citing Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir. 1997)

(“[A]n individual employee/supervisor who does not otherwise qualify as an ‘employer,’ may not

be held personally liable under Title VII.”)); cf. Hill v. Michigan, 62 Fed. App’x 114, 114 (6th Cir.

2003) (holding that where a plaintiff’s 42 U.S.C § 1983 complaint fails to indicate whether they

seek to hold the defendants liable in their official or individual capacities, it is appropriate to

presume that the officials are being sued in their official capacities).

The state of Ohio has not waived its immunity from suit in federal court, except to the

extent that such claims are allowed to be brought in the Court of Claims of Ohio. OHIO REV. CODE

§ 2743.02(A)(1) (“The state hereby waives its immunity from liability . . . and consents to be sued,

and have its liability determined, in the court of claims created in this chapter in accordance with

the same rules of law applicable to suits between private parties . . . .”); see also Jones v. Hamilton

Cty. Sheriff, 838 F.3d 782, 786 (6th Cir. 2016) (holding that OHIO REV. CODE § 2743.02(A)(1)

“confirms that Ohio has not consented to state law damages actions against the State of Ohio . . .

outside its own courts”); Bialczak v. Ohio Dep’t of Taxation, Case No. 99-3841, 2000 WL

1888789, at *2 (6th Cir. Dec. 22, 2000) (“Ohio Revised Code § 4112.99 authorizes suit against

the State of Ohio as an employer in its Court of Claims, but the statute does not waive the State’s

Eleventh Amendment immunity from suit in federal court.”); Robertson v. Rosol, Nos. 2:06–cv–

1087, 2:06–cv–1088, 2007 WL 2123764, at *4 (S.D. Ohio July 20, 2007) (“It is a clear point of

law that the State of Ohio has not consented to suit in federal court by enacting Ohio Rev.Code §

4112 et seq.”) Herman v. Ohio Univ. Case No. 2:19-cv-201, 2019 WL 6255719, at *3 (S.D. Ohio

Nov. 22, 2019) (same). Because Ohio law does not waive the state’s Eleventh Amendment

immunity from suit in federal court, this Court lacks subject-matter jurisdiction over Plaintiff’s

state-law claims.

Unlike Plaintiff’s state law claims, Title VII claims are permissible against the University

and University employees in their official capacities not withstanding the Eleventh Amendment.

Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that Congress abrogated the States’

sovereign immunity by enacting Title VII under the Enforcement clause, § 5, of the Fourteenth

Amendment). Therefore, this Court GRANTS Defendants’ Motion with respect to Counts IV–

XVI, which are DISMISSED WITHOUT PREJUDICE.

D. Ohio University Board of Trustees

Finally, Defendants argue that Plaintiff cannot join OU’s Board of Trustees as a defendant

because they are agents of the University and not a sui juris or suable entity. (ECF No. 13 at 10).

Even if the Board of Trustees was a legally independent entity, the Defendants allege that it would

still not be a suable because it is not the employer of record, this Court lacks jurisdiction over the

state law claims against it per the Eleventh Amendment, and Plaintiff has failed to plead well-pled

allegations against the Board of Trustees. (Id. at 10–11). Plaintiff does not respond to Defendants’

arguments that the OU Board of Trustees is not a suable entity. (ECF No. 24 at 1).

The OU Board of Trustees is composed of eleven members who are appointed by the

Governor, with the advice and consent of the senate, and serve without compensation. OHIO REV.

CODE § 3337.01. The Ohio Revised Code states:

Notwithstanding any other provision of law, a member of a board of trustees of an

institution of higher education, as defined in section 3345.12 of the Revised Code,

is not liable in damages in a civil action for injury, death, or loss to person or

property that allegedly is caused by an expenditure made or a contract entered into

by the institution of higher education unless the trustee acted with malicious

purpose, in bad faith, or in a wanton or reckless manner with respect to the

expenditure or contract.

OHIO REV. CODE § 3345.122. Further, the term “State” includes all boards and universities of the

state of Ohio. OHIO REV. CODE § 2744.01(G)(2)(I). Together, these statutes instruct that as both

individuals and as a board, the OU Board of Trustees cannot be held liable in damages in a civil

action under Ohio law and the Eleventh Amendment. That said, the OU Board of Trustees is

considered an entity of the state. As previously outlined, Title VII claims are permissible in federal

court against the state notwithstanding the Eleventh Amendment, as Congress abrogated the

States’ sovereign immunity by enacting Title VII under the Enforcement Clause of the Fourteenth

Amendment. Johnson, 215 F.3d at 571. Absent state law or regulation to the contrary, the OU

Board of Trustees is an entity of the State which can be sued under Title VII.

IV. CONCLUSION

For the reason stated above, Defendants’ Motion for Judgment on the Pleadings is

GRANTED in part and DENIED in part.

 Defendant’s Motion for Judgment on the Pleadings is GRANTED in regard to the

following claims which are DISMISSED WITHOUT PREJUDICE: (1) Count I for race,

national origin, and sex discrimination under Title VII; and (2) Counts [V—XVI under Ohio

law for discrimination, retaliation, breach of contract, breach of administrative policies,

and public policy violations.

e Defendant’s Motion for Judgment on the Pleadings is GRANTED in regards to Count II

under § 1981 which is DISMISSED WITH PREJUDICE.

e Defendant’s Motion for Judgment on the Pleadings is DENIED in regard to Count III for

retaliation under Title VII. Count I may PROCEED.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

DATED: March 14, 2023

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